Assembly of First Nations National Chief Perry Bellegarde Responds to New Addition to Reserves Policy

(Ottawa, ON): Assembly of First Nations (AFN) National Chief Perry Bellegarde said the Government of Canada’s new policy on Additions to Reserve (ATR) unveiled today must lead to a more streamlined, effective and transparent process as one avenue to enhancing the landbase for First Nations.

“Adding additional lands to reserves is critical to fulfilling the Crown's legal obligations and will provide for the overall development of First Nations,” said AFN National Chief Bellegarde. “I thank the members of the Chiefs Committee on Claims for their work leading to this new policy and their ongoing advocacy for First Nations. The key now is effective and timely implementation that is consistent with First Nations rights and title, and the United Nations Declaration on the Rights of Indigenous Peoples.

The announcement by Indigenous and Northern Affairs Canada follows the unanimous endorsement of a resolution at the 2016 AFN Annual General Assembly, calling on the Government of Canada “to implement the new ATR policy and related processes as soon as possible.” The National Chief welcomed the move to streamline the process and promote collaboration with other stakeholders, including municipalities.

In 2013, the AFN was mandated by Chiefs-in-Assembly to work with the Government of Canada on changes to the ATR policy, one which First Nations found cumbersome, lengthy and unresponsive to their needs. The Chiefs Committee on Claims and the Joint AFN/Canada Technical Working Group helped guide discussions relating to the development of the new ATR policy.

The Government of Canada is committed to improving the process for creating new reserves and adding land to existing reserves.

The Honourable Carolyn Bennett, Minister of Indigenous and Northern Affairs, today announced that the Government of Canada is taking a key step to renew its relationship with First Nations, with the introduction of a new Policy Directive on Additions to Reserve/Reserve Creation.

The new Policy Directive will help streamline the Additions to Reserve process, clarify roles and responsibilities of the First Nation and other stakeholders and promote better collaboration between all concerned parties such as municipalities.

Additions to reserves enable Canada to fulfil legal obligations established by specific claim settlements and compensate First Nations for lands owed under historic treaties. Expanding the reserve land base is also an important mechanism by which First Nations can foster community and economic development.

Quote"This new Policy Directive will better meet the needs of all our Indigenous and non-Indigenous partners. The goal is to make the Additions to Reserve process more efficient and transparent, helping to advance reconciliation with First Nations, improve treaty relationships and create new economic opportunities for First Nation communities."

The Honourable Carolyn Bennett, M.D., P.C., M.P.,Minister of Indigenous and Northern AffairsQuick factsThe federal Additions to Reserve Policy was created in 1972 and updated in 2001.An extensive engagement process was undertaken with First Nations and stakeholders to help shape the revised Policy, including close collaboration with the Assembly of First Nations.From 2000 to 2015, 1,561,985 acres have been added to the reserve land base of 203 First Nation communities across Canada.Related productsAdditions to Reserve (ATR)https://www.aadnc-aandc.gc.ca/eng/1332267668918/1332267748447

This Policy on Additions to Reserve/Reserve Creation provides guidance with respect to the assessment, acceptance and implementation of Reserve Creation Proposals, including proposals by First Nations operating under the First Nations Land Management Act.

2.0 Effective Date

2.1 This Policy is issued under the authority of the Minister of Indigenous and Northern Affairs. This Policy will be administered by the Department of Indigenous and Northern Affairs Canada (INAC). This Policy received approval on June 29, 2016, and is effective as of July 27, 2016.

2.2 This Policy is Chapter 10 of INAC's Land Management Manual. It includes all the directives contained in this Chapter including their annexes. It replaces all prior policies, interim policies, directives, standards, procedures and guidelines relating to Reserve Creation, including Additions to Reserve.

2.3 Reserve Creation Proposals submitted prior to the effective date of this Policy will be processed in accordance with Directive 10-3: Additions to Reserve/Reserve Creation Transition Guidelines.

2.4 In this Policy, the term Reserve Creation is used to refer to both Additions to Reserve and the creation of New Reserves.

3.0 Definitions

The following definitions apply in this Policy.

"Addition to Reserve" means the act of adding land to an existing Reserve land base of a First Nation;"Agreement" means any written agreement to which Canada is a party that includes provisions with respect to Reserve Creation;"Approval in Principle" (AIP) is a term applicable only to the 2001 Policy. It means INAC's decision to recommend a proposal to the Minister, for consideration of reserve status through a submission to the Governor in Council, or by means of a Ministerial Order as permitted by Claims legislation. An AIP can be granted with or without conditions. It is given by either the Regional Director General (RDG) or the Deputy Minister (DM). Where conditions are attached to the AIP, they must be satisfied before an order in council (OIC) or Ministerial Order recommendation can be made;"Canada" means Her Majesty the Queen in right of Canada (the federal government);"Duty to Consult" means an obligation of the government as a whole to consult with Aboriginal peoples (and accommodate where appropriate) when the Crown contemplates conduct that might have an adverse impact on potential or established Aboriginal or treaty rights protected by section 35 of the Constitution Act, 1982;"Environmental Site Assessment" means an analysis of Proposed Reserve Land with respect to past and present uses, as well as on-site and off-site activities that may have the potential to affect the Proposed Reserve Land's environmental quality, including the health and safety of occupants/residents;"First Nation" or "Band" means a "band" as defined under the Indian Act;"INAC" means Indigenous and Northern Affairs Canada (the department legally known as the Department of Indian Affairs and Northern Development Canada);"Joint Reserve" means a Reserve that is set apart for the use and benefit of more than one First Nation;"Land Management Manual" means INAC's Land Management Manual;"Letter of Support" means a letter from INAC officials to the First Nation that states that the First Nation's Reserve Creation Proposal will be supported by INAC officials to the extent indicated in this Policy and identifies the criteria that must be satisfied before INAC officials will recommend the Proposed Reserve Land for Reserve Creation;"Local Government" means a city, town, village or other built-up area with municipal, regional district or other authority, and includes a rural or urban municipality, as defined in relevant provincial or territorial legislation;"Mines and Minerals" means mines and minerals, precious or base, including oil and gas;"Minister" means the Minister of Indigenous and Northern Affairs (legally known as the Minister of Indian Affairs and Northern Development Canada);"New Reserve" means the act of creating a Reserve for a First Nation with no existing Reserve land base;"Proposed Reserve Land" means land proposed by the First Nation for Reserve Creation;"Reserve" means a reserve as defined under the Indian Act;"Reserve Creation" means the act of adding land to an existing Reserve or creating a new Reserve for a First Nation by Order in Council or Ministerial Order;"Reserve Creation Proposal" means the formal proposal by a First Nation to add land to an existing Reserve or to create a New Reserve by Order in Council or Ministerial Order;"Reserve Creation Proposal Criteria" means the relevant requirements and criteria set out in Annexes A and B of Directive 10-1 of this Policy and any other requirements or criteria as determined by INAC;"Royal Prerogative" means the power of the Crown, as represented by the Governor in Council, to take action as an exercise of its executive power. Setting apart Reserves is one such power and it is exercised by the Governor in Council acting through an Order in Council at the request of the Minister.4.0 Interpretation

4.1 Where the criteria or requirements in this Policy are inconsistent or conflict with the provisions in an Agreement (including but not limited to a Treaty Land Entitlement, other Specific Claim, or Self-government Agreement), the provisions of the Agreement will prevail to the extent of the inconsistency or conflict.

4.2 Any reference in this Policy to a statute or regulation includes any amendment to that statute or regulation and any successor statute or regulation.

4.3 Any reference to a policy, directive, standard, procedure or guideline includes any amendment to that policy, directive, standard, procedure or guideline.

5.0 Context

5.1 Orders in Council

The authority of the Governor in Council to grant Reserve status flows from the Royal Prerogative, which is a non-statutory authority. There is no statutory authority under the Indian Act to set apart land as a Reserve. Typically, lands must be acquired or a transfer of administration and control accepted by Canada under the Federal Real Property and Federal Immovables Act, and then granted Reserve status by federal Order in Council on the recommendation of the Minister of INAC.

5.2 Ministerial Orders

Other authorities to set apart land as Reserve are found in the Manitoba Claim Settlements Implementation Act and the Claim Settlements (Alberta and Saskatchewan) Implementation Act. These allow for Reserve Creation in the provinces of Alberta, Saskatchewan and Manitoba by Ministerial Order without the requirement for an Order in Council.

6.0 Policy Statement

Reserve Creation may be used to fulfill Canada's legal obligations, and may further serve a broader public interest by supporting the community, social and economic objectives of First Nations by expanding a First Nation's Reserve land base.

7.0 Objectives

This Policy is intended to:

provide clear policy direction for Reserve Creation;promote consistent assessment, acceptance and implementation of Reserve Creation Proposals where possible;consider the interests of all parties and find opportunities for collaboration where possible; andstreamline the process for Reserve Creation Proposals.8.0 Principles

The following principles must be respected in the application of this Policy:

Nothing in this Policy constitutes a guarantee that any Reserve Creation Proposal will ultimately result in a particular parcel of land being set apart as Reserve. The final decision to set apart land as Reserve rests with the Governor in Council or the Minister of INAC. See clause 5.0 (Context).INAC will consider the potential or established Aboriginal or Treaty rights of First Nation, Métis and Inuit peoples before setting apart lands as Reserve.The views and interests of provincial, territorial and Local Governments will be considered, and collaboration between the First Nations and those governments will be encouraged on issues of mutual interest and concern.Options to address third party interests or rights on lands will be identified when considering Reserve Creation Proposals.Reserve Creation Proposals will make cost effective use of financial resources.The environmental condition of land proposed for Reserve Creation will be acceptable for its intended use, and will comply with applicable federal requirements.Reserve Creation Proposals will comply with applicable federal requirements for land acquisition and management.The use and development of community and land use planning tools is encouraged to assist First Nations in planning for land acquisition and Reserve Creation, and to facilitate land management after Reserve Creation.INAC encourages accountability and transparency through the entire Additions to Reserve process. This can be achieved by communicating key milestones and decision points, where appropriate, to community members using tools such as the First Nations Gazette.9.0 Categories of Reserve Creation

9.1 Legal obligations and Agreements – Where there is a legal obligation or a legal commitment by Canada that contemplates Reserve Creation contained within:

a settlement Agreement (such as Treaty Land Entitlement or other Specific Claims Agreement);a Self-Government Agreement;a land exchange Agreement;a land transaction with a reversionary interest or right to Canada or the First Nation;an Agreement for return of former Reserve land where there is no express reversionary interest or right;an Agreement with a landless Band; oran Agreement for the relocation of a community, the expansion of an existing reserve land base, or the establishment of a New Reserve.9.2 Community Additions – Where a First Nation with an existing Reserve needs additional Reserve land for any of the following purposes:

residential, institutional, recreational uses, to accommodate community growth;use or protection of culturally significant sites (such as burial grounds, archaeological, or ceremonial);economic development;geographic enhancements to improve the functioning of existing Reserve base; orwhere the First Nation has entered into a legally binding agreement with the province, territory, Local Government or a corporation that is empowered by law to take or to use lands, and Canada is not a party to the agreement but agrees to implement those provisions of the agreement. This may include transactions under section 35 of the Indian Act.9.3 Tribunal Decisions – Where a First Nation seeks to acquire lands with compensation awarded by the Specific Claims Tribunal for:

a failure to fulfill a legal obligation of the Crown to provide lands under a treaty or another Agreement;a breach of a legal obligation arising from the Crown's provision or non-provision of Reserve lands; oran illegal disposition by the Crown of Reserve lands.10.0 Selection Area

The Proposed Reserve Land should normally be located within a First Nation's Treaty or Traditional Territory. Where there is an Agreement under the legal obligations and Agreements category of this Policy, Proposed Reserve Land may be outside the First Nation's Treaty or Traditional Territory, but within the province or territory where the majority of the First Nation's existing Reserve land is located.

11.0 Reserve Creation Proposals

11.1 In order for Reserve Creation to be considered under this Policy, a First Nation must provide a Reserve Creation Proposal that satisfies the minimum proposal requirements set out in Directive 10-2 "Reserve Creation Process".

11.2 All Reserve Creation Proposal Criteria identified in a Letter of Support must be met before INAC will submit a Reserve Creation Proposal to the Governor in Council or to the Minister for approval.

12.0 Proposal Assessment

12.1 Before issuing a Letter of Support for a Reserve Creation Proposal, INAC will fully review and assess the Reserve Creation Proposal in accordance with Directive 10-2, "Reserve Creation Process". This includes considering the Reserve Creation Proposal put forward by the First Nation, the Reserve Creation Proposal Criteria required to complete the Reserve Creation (see Annexes A & B of this Policy), and the responses from provincial, territorial and Local Governments.

12.2 In providing advice to the Minister of INAC or the Governor in Council on the merits of the Reserve Creation Proposal, INAC will comment on the social and economic prosperity of the First Nation and describe any other impacts or benefits flowing from the Reserve Creation, which could include any of the following:

fulfillment of legal obligations or Agreements of Canada;implementation of Reserve Creation Proposals related to Specific Claims Tribunal decisions;economic development potential of the Reserve Creation on residents of the surrounding area;costs related to the provision of services to the First Nation and the Local Government (where the First Nation is the service provider);revenue adjustments resulting from a change in tax status;financial implications for Canada;existing First Nation, provincial, territorial, regional or Local Government land use plans;regional infrastructure management;regional traffic or transit management plans;protected or environmentally sensitive areas (such as National Parks, Agricultural Land Reserves in British Columbia, or Greenbelt Lands in Ontario); andculturally sensitive areas (such as First Nations burial, archaeological or ceremonial sites).12.3 In advising on the Reserve Creation Proposal, INAC assigns no specific weighting to the factors for consideration, nor is any single factor determinative. On balance, the positives must outweigh the negatives. INAC will consider the factors before providing a Letter of Support, and will provide its assessment of those factors to the Minister and the Governor in Council when INAC submits the Reserve Creation Proposal to the Minister or the Governor in Council for approval.

12.4 Reserve Creation Proposals based on the Community Additions category must establish a community need for the Proposed Reserve Land. The Proposal must demonstrate that the existing Reserve base is not suitable for the intended land use. Reserve Creation Proposals for economic development under this category must further demonstrate that the benefits and positive impacts from the Reserve Creation outweigh the potential tax impacts associated with Reserve Creation, as tax advantages cannot be the sole justification for Reserve Creation.

12.5 If a proposal will be supported, INAC will identify in the Letter of Support any relevant criteria, including criteria set out in Annex A or B (where applicable) that must be satisfied before INAC will recommend that the Proposed Reserve Lands be set apart as a Reserve.

12.6 If a proposal will not be supported, INAC will provide a written explanation to the First Nation.

13.0 Financial Implications

13.1 In the absence of an Agreement or other arrangement providing funding, INAC is not obligated nor prevented by this Policy from providing funding for Reserve Creation activities, including:

land acquisition;surveys;environmental assessment activities, remediation and monitoring/mitigation activities, or other environmental costs;transactional costs associated with land acquisition;incremental costs resulting from negotiations with Local Governments; andany additional funding for infrastructure housing, or other capital costs.13.2 INAC must identify any foreseeable financial implications for Canada, as well as potential sources of funding relevant to the intended use of the Proposed Reserve Land before a Letter of Support is issued.

14.0 Community Consent

14.1 A Band Council Resolution is required for all Reserve Creation Proposals.

14.2 In the limited circumstances where a Band vote is required under this Policy, a vote will be held in accordance with, or in a similar manner to, the Indian Referendum Regulations, and will be decided by a majority of those eligible electors of each participating First Nation who voted (simple majority). A First Nation may choose to establish a higher threshold for community consent for the conduct of these votes.

15.0 Dispute Resolution

15.1 INAC promotes a "good neighbour" approach that encourages effective relations when First Nations and Local Governments, provinces, territories, or third parties are seeking to resolve issues relating to Reserve Creation. INAC encourages discussions on issues of mutual interest and concern that are conducted with good will, good faith and reasonableness, and within reasonable timeframes.

15.2 To assist First Nations and Local Governments, provinces, territories, or third parties in successfully resolving disputes, the following best practices are encouraged:

early communication on the Reserve Creation Proposal that pro-actively seeks to avoid disputes, encourages cooperation among parties, and works towards building a positive relationship;the development of mutually agreeable approaches to dispute resolution between the parties at the outset of discussions in order to identify and address areas of disagreement quickly, and facilitate further resolutions as they may arise in the negotiation of agreements;the inclusion of dispute resolution mechanisms in any final agreements between the parties, where appropriate, to address future disagreements as they arise;the establishment of mutually agreeable time frames for efforts to resolve disagreements; andthe use of mediation where negotiations have reached an impasse.15.3 It is expected that the parties to a dispute will attempt to resolve disputes on their own, both during and after the negotiation of any required agreements. Where appropriate, INAC encourages the use of non-binding dispute resolution processes, such as:

Conciliation: The parties may try to work out the issues by themselves such as at a joint meeting between the First Nation council and the other party. In the alternative, the parties may work out the issues with the assistance of a third party;Facilitation: The parties may request assistance from neutral third party for facilitation of a joint meeting to support discussions that assist the parties to identify issues, and develop options to resolve disputes; andMediation: Pursuant to this process, a third party assists in working out a solution to the dispute. A decision is reached by consensus, which may or may not be binding depending on the terms of the mediation.15.4 Discussions around issues of mutual interest and concern where instances of disagreement between First Nations and Local Governments, provinces, territories, or third parties have arisen should not unreasonably delay a Reserve Creation Proposal.

15.5 While INAC is not a party to agreements between First Nations and Local Governments, provinces, territories, or third parties, and has no authority under this Policy to impose agreements or arbitrate decisions among the parties, INAC will support these discussions and negotiations by:

encouraging the parties to contact INAC as early as possible to provide technical assistance such as general information and clarification of policy and process;where requested, providing facilitated management (by INAC or a neutral third party) of a joint meeting to support discussions that assist the parties to identify issues, and develop options to resolve disputes; andproviding access to tools and resources to assist the parties in understanding the dispute resolution process and how to incorporate dispute resolution techniques into their ongoing relationship.15.6 Where there are outstanding issues or concerns arising from negotiations between First Nations and Local Governments, provinces or territories, or third parties, and all dispute resolution options (including mediation) have been explored, the Regional Director General or Deputy Minister may nonetheless agree to support the Reserve Creation Proposal, or may withdraw support. In this instance, INAC will discuss the decision with the First Nation, and the Reserve Creation Proposal will be forwarded to the Minister for review.

16.0 Roles and Responsibilities

16.1 The Minister of INAC is responsible for:

the decision to approve Reserve Creation through the issuance of a Ministerial Order; orthe decision to recommend Reserve Creation where the Reserve will be created by Order in Council.16.2 The Deputy Minister is responsible for:

the administration of this Policy;the review and consideration of whether to issue a Letter of Support for Community Additions Reserve Creation Proposals.the issuance of Clarification Bulletins where an aspect of this Policy is either ambiguous or inconsistent with another aspect of this Policy; andthe issuance of amendments, as may be required from time to time for the effective implementation of the Policy, to any of the templates set out in Directive 10-2 (Reserve Creation Process) of this Policy.16.3 The Regional Director General is responsible for:

the review and consideration of whether to issue a Letter of Support for Legal Obligation and Agreements Reserve Creation Proposals and Specific Claims Tribunal Reserve Creation Proposals; andadvising the Deputy Minister on decisions to issue a Letter of Support for Community Additions Reserve Creation Proposals.17.0 Policy Assessment and Review

17.1 Within five years from the effective date of this Policy, INAC will conduct a joint review of the effectiveness of this Policy. The review will be guided by a steering committee that will include First Nations stakeholders.

17.2 The effectiveness of this Policy will be examined by INAC using the results of assessments of this Policy and other related instruments that flow from it. INAC will identify and undertake any additional monitoring and assessment activities as necessary to undertake an effective policy review.

18.0 Legislation and Related Policy Instruments

Legislation and policy instruments applicable to the Additions to Reserve/Reserve Creation Policy include but are not limited to the following:

INAC's Land Management Manual;INAC's New Bands and Band Amalgamations Policy;Chapter 12 of INAC's Land Management Manual (Environmental Obligations);Treasury Board Secretariat Policy on Management of Real Property;INAC's Indian Lands Registration Manual;INAC's Specific Claims Policy;Canada's Aboriginal Consultation and Accommodation Updated Guidelines for Federal Officials to Fulfill the Duty to Consult;Geographical Names Board of Canada; Principles and Procedures for Geographic Naming, 2011; Public Works and Government Services Canada, ISBN 978-1-100-52417-7;First Nation Taxation Commission and Federation of Canadian Municipalities for information on First Nation/municipal tax/service agreements and models;Framework Agreement between INAC and Legal Surveys Division, Natural Resources Canada, February 25, 2009, registered in the Indian Land Registry under Instrument No. 258930, for the type of land description requirements for Reserve land transactions.